Waite & Waite-Hollins - [2007] FamCA 477

FAMILY COURT OF AUSTRALIA

WAITE & WAITE-HOLLINS & ANOR

[2007] FamCA 477

FAMILY LAW - APPEAL OF REFUSAL OF APPLICATION TO STAY RETURN OF CHILDREN TO SWITZERLAND PENDING APPEAL AGAINST SUBSTANTIVE JUDGMENT - Urgent hearing - Children scheduled to return to Switzerland on day of appeal hearing – Circumstances of instability for children pending return to Switzerland - For the preceding 18 month period the children had been in the care of the Department of Community Development, the Mother remaining in Switzerland and the Father having predominantly supervised contact with the children – Finding by the trial Judge that in the event that the Appeal was successful, children likely to have contact with the Mother in Switzerland in any event – Permitting their immediate departure would allow contact - Given their preparation for departure, likely trauma to the children of any restriction on immediate return – Finding of trial Judge as to the likelihood of one child exhibiting serious psychological problems in the event that her wish to reside with the Mother did not eventuate

FAMILY LAW - APPEAL OF REFUSAL OF APPLICATION TO STAY RETURN OF CHILDREN TO SWITZERLAND PENDING APPEAL AGAINST SUBSTANTIVE JUDGMENT – GROUNDS OF APPEAL - Alleged that trial Judge’s decision was contrary to law and particularly EJK v TSL (No.2) (2006) 35 Fam LR 590 - Father alleged that having regard to history of proceedings, the trial Judge erred in finding that Mother would voluntarily return the children to Australia in the event of a successful appeal

FAMILY LAW - APPEAL OF REFUSAL OF APPLICATION TO STAY RETURN OF CHILDREN TO SWITZERLAND PENDING APPEAL AGAINST SUBSTANTIVE JUDGMENT - APPLICABLE PRINCIPLES - Full Court distinguished EJK v TSL (No.2) (2006) 35 Fam LR 590 - Trial Judge satisfied that there were safeguards in Switzerland to ensure the Mother’s compliance with court order – Correct test applied by the trial Judge in her determination of the Father’s stay application - Held by the Full Court that having regard to the unusual circumstances of this case, the welfare of the children dictated their expeditious return to Switzerland – Appeal Dismissed

Re Evelyn(No. 2) (1998) FLC 92-817
Clemett and Clemett (1981) FLC 91-013

EJK v TSL (No.2) [2006] FamCA 806; (2006) 35 Fam LR 590

Sanders (1976) 26 FLR 474

APPELLANT FATHER

MR WAITE

1ST RESPONDENT MOTHER

MS WAITE-HOLLINS

2ND RESPONDENT

DEPARTMENT FOR COMMUNITY DEVELOPMENT

INDEPENDENT CHILDREN’S LAWYER:

Ms S Crisp

FILE NUMBER:

3406

2000

APPEAL NUMBER:

2006

DATE DELIVERED:

24 May 2007

PLACE DELIVERED:	Melbourne
JUDGMENT OF:	BRYANT CJ, KAY & THACKRAY JJ
HEARING DATE:	4 September 2006

LOWER COURT JURISDICTION:	Family Court of Western Australia
LOWER COURT JUDGMENT DATE:	18 August 2006
LOWER COURT MNC:	[2006] FCWA 84

REPRESENTATION

COUNSEL FOR THE APPELLANT:	Mr Dickey QC with Ms Brownlie
SOLICITORS FOR THE APPELLANT:	Paterson & Dowding

COUNSEL FOR THE 1ST RESPONDENT:	Mr Redman
SOLICITOR FOR THE 1ST RESPONDENT:	Gibson & Gibson

COUNSEL FOR THE INTERVENOR:	Mr Watters
SOLICITOR FOR THE…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Waite & Waite-Hollins [2007] FamCA 477
Case: [2007] FamCA 477
Decision Date: 24 May 2007

CaseChat Overview and Summary

The appeal concerned an application to stay the return of two children to Switzerland pending an appeal against a substantive judgment. The children were scheduled to return to Switzerland on the same day as the appeal hearing. The father sought the stay, citing instability for the children and alleging the trial judge erred in finding the mother would voluntarily return the children to Australia if the appeal were successful. The children had been in the care of the Department of Community Development for the preceding 18 months, with the mother residing in Switzerland and the father having predominantly supervised contact.

The legal issues before the Full Court were whether the trial judge erred in refusing the father's application for a stay of the children's return to Switzerland, particularly in light of the grounds of appeal which alleged the decision was contrary to law and the principles established in *EJK v TSL (No.2)*. The father contended that the trial judge should not have found that the mother would voluntarily return the children to Australia in the event of a successful appeal, given the history of the proceedings.

The Full Court distinguished the present case from *EJK v TSL (No.2)*, finding that the trial judge had applied the correct test and was satisfied that adequate safeguards existed in Switzerland to ensure the mother's compliance with any court order. The court considered the unusual circumstances, including the children's preparation for departure and the potential trauma of restricting their immediate return, as well as the trial judge's finding regarding the likelihood of serious psychological problems for one child if her wish to reside with the mother did not eventuate. Ultimately, the Full Court held that the welfare of the children dictated their expeditious return to Switzerland.

The appeal was dismissed, with the notice of appeal filed on 4 September 2006 being dismissed. The costs of the 4 September 2006 hearing were made costs in the appeal filed on 28 July 2006.

Orders

Orders of the court

That the notice of appeal filed 4 September 2006 be dismissed.

That the costs of 4 September 2006 be costs in the appeal filed 28 July 2006.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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